MOOL RAJ, HAPUR V. ITO, WARD- 3(4), HAPUR

ITA 1627/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1968 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 1 627 /DEL/201 8 [ASSESSMENT YEAR: 2 00 9 - 1 0 ] SHRI MOOL RAJ VS. THE I . T . O 609, ANSAL SATYAM RDC , WARD - 3 (4) RAJ NAGAR , GHAZIABAD NEW DELHI PAN : A XHPM 1726 F [APPELLANT] [RESPONDENT] DATE OF HEARING : 0 6 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 1 0 .0 9 .2018 ASSESSEE BY : SHRI ANURAG JAIN , CA REVENUE BY : S HRI ANIL KUMAR SHARMA, SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] , MUZAFFARNAGAR DATED 3 0 .0 1 .201 8 PERTAINING TO ASSESSMENT YEAR 20 0 9 - 1 0. 2 2. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 25 LAKHS MADE BY THE ASSESSING OFFICER AS UNEXPLAINED INVESTMENT IN PURCHASE OF PROPERTY . 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CONFRONTED THE ASSESSEE WITH THE AIR INFORMATION IN RESPECT OF PURCHASE OF IMMOVABLE PROPERTY AMOUNTING TO RS. 46,85,000/ - . THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF PURCHASE OF THE IMPUGNED PROPERTY. 4. IN ITS REPLY, THE ASSESSEE CLAIMED THAT THE SAID PROPERTY WAS RECEIVED BY HIM AS A GIFT FROM HIS MATERNAL UNCLE AND WHILE EXECUTING THE GIFT DEED, THE PREPARER OF THE DOCUMENTS WRONGLY MENTIONED THE SAME AS SALE DEED. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE FILED AN AFFIDAVIT OF HIS MOTHER WHO WAS A POWER OF ATTORNEY OF THE SAID PROPERTY. 3 5. THE CLAIM OF THE ASSESSEE DID NOT FIND ANY FAVOUR WITH T HE ASSESSING OFFICER WHO WAS OF THE OPINION THAT SINCE THE TRANSACTION AMOUNT MENTIONED IN THE DEED WAS RS. 25 LAKHS, THOUGH THE STAMP DUTY HAS BEEN PAID ON RS. 46.85 LAKHS, THE ASSESSING OFFICER TREATED THE SUM OF RS. 25 LAKHS AS UNEXPLAINED INVESTMENT AN D MADE ADDITION ACCORDINGLY. 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. 7. BEFORE ME, THE LD. AR DREW MY ATTENTION TO THE REGISTERED DOCUMENT AND POINTED OUT THAT INADVERTENTLY, THE PREPARER OF THE DOCUMENT MENTIONED TH E TRANSACTION AS SALE INSTEAD OF GIFT. THE LD. AR FURTHER POINTED OUT THAT THE REGISTERED POWER OF ATTORNEY WAS GIVEN BY HIS MATERNAL UNCLE IN THE NAME OF HIS MOTHER IN RESPECT OF THE SAID PROPERTY. THE LD. AR FURTHER POINTED OUT THAT THE ASSESSING O FFICER HAS NOT CONSIDERED THE AFFIDAVIT FILED BY THE MOTHER OF THE ASSESSEE AND BY THE ASSESSEE ALSO. IT IS THE SAY OF THE LD. AR 4 THAT THE FACTS OF THE CASE HAVE NOT BEEN PROPERLY DEALT WITH BY THE ASSESSING OFFICER. 8 . I HAVE CAREFULLY CONSIDERED THE O RDERS OF THE AUTHORITIES BELOW AND GONE THROUGH THE DOCUMENTARY EVIDENCE REFERRED TO HEREINABOVE . IT IS TRUE THAT THE DOCUMENTS REFER TO AS A SALE OF THE IMMOVABLE PROPERTY. BUT THE CONTENTION OF THE ASSESSEE THAT HE HAS RECEIVED THE SAID PROPERTY AS GIFT FROM THE MATERNAL UNCLE SUPPORTED BY AFFIDAVIT CANNOT BE BRUSHED ASIDE LIGHTLY. IN MY VIEW, THE FACTS HAVE NOT BEEN PROPERLY APPRECIATED. IN MY OPINION, HUMAN ERROR HAS CREPT WHILE PREPARING THE DOCUMENT AND THE SAME NEEDS FURTHER VERIFICATION. I, THE REFORE, DEEM IT FIT TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE IS DIRECTED TO FURNISH ONCE AGAIN THE AFFIDAVITS AND GIVE FULL ADDRESS OF THE MATERNAL UNCLE. THE ASSESSING OFFICER IS DIRECTED TO CALL THE MATERNAL UNCLE BY IS SUING SUMMONS AS PER PROVISIONS OF THE LAW, EXAMINE HIM AND DECIDE THE ISSUE AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 16 27 /DEL/201 8 IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 0 . 0 9 .2018 . S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 1 0 , SEPTEMBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI 6 DATE OF DICTATION 0 6 . 0 9 . 2 0 1 8 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 0 7 . 0 9 . 2 0 1 8 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 0 7 . 0 9 . 2 0 1 8 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 0 7 . 0 9 . 2 0 1 8 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 0 7 . 0 9 . 2 0 1 8 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS 1 0 . 0 9 . 2 0 1 8 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 0 . 0 9 . 2 0 1 8 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER